Opinion 93-133

March 10, 1994

Digest:         A full-time judge may not participate as an unpaid commentator on a television program in which the judge would make observations and offer comments on non-New York actions, which had been telecast in whole or in part, that day.

Rules:          22 NYCRR 100.3(a)(6); 100.4(a), 100.2(a)

Opinion:

         A full-time judge inquires as to the propriety of the judge's occasional participation as an unpaid commentator, on the television program “Court TV”. The cases on which the Judge would comment are actions arising outside New York State and would have been telecast earlier the same day. Some of the matters would be ongoing trials and others would be completed trials. As stated by the judge, the comments “would be in the areas of identifying important legal issues and discussing the procedural setting of the matter.”

         In the inquiry, the judge asks for the proper application of Rules 100.3(a) and 100.4(a) to the situation presented. In pertinent portions, these sections state:

         Section 100.3 Impartial and Diligent Performance of Judicial Duties

(a) Adjudicative Responsibilities.

(b) A judge shall abstain from public comment about a pending or impending matter in any court, and shall require similar abstention on the part of court personnel subject to his or her direction and control. This subdivision does not prohibit judges from making public statement in the course of their official duties or from explaining for public information in procedure of the court.

         Section 100.4 Activities to Improve the Law, the Legal System, and the Administration of Justice.

A judge, subject to the proper performance of his or her judicial duties may engage in the following quasi-judicial activities, if in doing so the judge does not cause doubt on the capacity to decide impartially any issue that may come before him or her:

(a) a judge may speak, write, lecture, teach and participate in other activities concerning the law; the legal system, and the administration of justice.

         A judge is to be further guided by 22 NYCRR §100.2(a) in that a judge is to conduct “himself or herself at all times in a manner that promotes public confidence in the integrity and impartiality of the judiciary.”

         It is the opinion of the Committee that the Judge should not participate in the program, upon the terms presented in the submission. The effect of the requirement that a “judge abstain from public comments about a pending or impending matter in any court” (22 NYCRR §100.3(a)(6), emphasis added), is not, in this instance, eroded by the authority of a judge to explain for public information the “procedures of the court,” (22 NYCRR §100.4(a) emphasis added), which exception refers to the procedures of the court in which the judge sits. The inquiring judge would not be explaining for public information the procedures of his or her court or, for that matter any other court in New York State. And, while the activity contemplated may be of educational value, such appearances cannot be deemed to constitute quasi-judicial activities designed to improve the law, the legal system and the administration of justice, as permitted under 22 NYCRR §100.4.

         Moreover, the intention to engage in comment and discussion which consists of “identifying important legal issues” presents a particular danger of involvement in a pending matter. The fact that the trial may have just been completed the same day that the judge appears does not mean that the case in question is no longer a pending action.

         Further, what constitutes an important legal issue in the particular case being commented on may very well be a subject of dispute between the litigants. Comments and observations made in that regard could prove troublesome, especially in view of their immediacy in relation to the events being discussed. These comments and observations are being made solely in the context of and with special reference to an ongoing litigation, the trial of which (or a portion thereof) has been telecast that day. Remarks by the judge could thus be seen as lending a judicial imprimatur to legal positions being advanced by one of the parties in an existing legal action, which legal positions may not have yet been ultimately determined. Such remarks would constitute public comment about a pending matter and, therefore, are not permitted under 22 NYCRR §100.3(a)(b).